Celebrity and fame are not always easy labels to interpret. Questions frequently arise over who is a celebrity and what degree of fame is required for someone to achieve celebrity status. In fact, both courts and legislatures have failed to produce uniform standards or guidelines to establish a well-defined right of publicity. Even so, the protection afforded a celebrity's right of privacy seems to be broadening. The right of publicity may be claimed under federal unfair competition law. Likewise, the scope of particular characteristics that are protected is expanding. While a celebrity's right was once limited to his or her name, signature and face, protection is now expands to "likeness" and "person" and, in some cases, to voice and vocal style.
At the beginning of this century, the law denied relief to even the living person whose name or likeness was the object of illicit appropriation. Things are different now. A celebrity's "right of publicity" is recognized as a property interest, assignable during life, descendible at death. Nevertheless, there remains an array of questions and issues concerning the validity of a so-called celebrity, and the nature and scope of the right of publicity. For example, who exactly, and what degree of fame is required, for someone to achieve celebrity status? How does the alleged celebrity make some showing that he or she is a "public personality"?
In 1988, the U.S. Court of Appeals held that Bette Midler stated a good cause of action when she alleged that Ford Motor Company and its advertising agency had hired a singer to perform "Do You Want To Dance" in a voice and style intended to "sound as much as possible like the Bette Midler record." Midler was awarded $400,000 in damages against the advertising agency. Vanna White had a cause of action against a firm that created a robot resembling her. (No deception had been intended.) White was held to have a "marketable celebrity identity value," which, the firm had used for commercial profit. The right of publicity has acquired many of the attributes of a property right, such as, it can be develop commercial value, be inheritable (in some jurisdictions), and be assigned or licensed.
A central issue regarding the right of publicity is its derivation. The derivation of the right of publicity determines whether the courts consider it a personal right or a property right. Some Courts indicate the right derives from unfair-competition laws as misappropriation of a commercially valuable right, while other courts have continued to hold that the right of publicity derives from the right of privacy.
There is no specific federal right of privacy statute; however, several states have enacted legislation that serves to protect a celebrity's right of publicity. Not surprisingly, these states include the entertainment centers of California, New York and Tennessee. The majority of states, though, do not have right-of-publicity statutes. Injunctive relief is the traditional remedy for a celebrity whose right of publicity has been violated. An injunction is effective because it prevents any further unauthorized use of the celebrity's name, signature, likeness or other aspect of his or her identity. Although it is obviously difficult to put a price tag on the value of a celebrity's right of publicity, one of the most recent decisions in which damages were awarded involved a dispute over the U.S. stage production and movie "Beatlemania," Apple Corps Limited v. Leber, 12 Media L. Rep. 2280, 229 U.S.P.Q. (Cal. Super. Ct. 1986). The Beatles' record and holding company claimed that the defendants' Beatlemania show had violated the Beatles' right of publicity under the New York civil rights statute. Furthermore, the plaintiffs claimed that the defendants' production constituted unfair competition because people were likely to believe that the Beatles had authorized, or consented, to Beatlemania. The court stated that the "viewers fell prey to the illusion that they were actually viewing the Beatles in performance." The production was immensely successful, grossing $45 million, but the court assessed approximately $8 million plus interest, for the "massive appropriation" of the Beatles' right of publicity during Beatlemania.
Cases involving celebrity lookalikes date to the early 1980's when Elvis Presley impersonators first appeared on the scene, and since that time have involved lookalikes for such celebrities as Jacqueline Onassis and Woody Allen. In response to lookalike situations, the courts have introduced the likelihood-of-confusion test. The test is borrowed from the trademark laws and attempts to assess the impact or degree of confusion the consumer or viewer will experience when confronted with a commercial production featuring a celebrity lookalike.
Another issue with which the courts have been grappling is whether the right of publicity can be passed on to a celebrity's heirs. In one case involving Elvis Presley, the court held that Mr. Presley's right of publicity was descendible under Tennessee common law and remained enforceable by his estate and respective licenses. Despite a landmark decision by the Georgia Supreme Court in Martin Luther King Jr. Ctr. For Soc. Change Inc. v. American Heritage Prds, 296 S.E. 2s. 697 (1982), holding that Martin Luther King Jr's right of publicity descended to his heirs, court decisions have not followed a uniform path.
A Wisconsin District Court, in Heinz v. The Frank Lloyd Wright Foundation, 773 F.Supp., 1219 (W.D. Wis. 1991) found that the foundation could not prevail on a right-of-publicity claim because Wisconsin law recognizes a right of publicity only on living persons. Thus, the personality pf well-known architect and designer Frank Lloyd Wright had not descended to his estate or heirs, but died when he did. The Wisconsin statute is one based on the right-of-privacy, and the court declined to distinguish any rights of publicity that might exist independently of a right of privacy. The increasing number of right-of-publicity cases indicates that this area of law will continue to grow. The common practice is not for the courts to apply the appropriate state law. Congressional action, or a decision by the U.S. Supreme Court, on the subject may be necessary if uniform standards are to be implemented.
Most of this article is from "Celebrity Status and Right of Publicity," by Gary Ropske, New York Law Journal, January 31, 1997.
